By: Paul S. Marchand
Imagine how absurd it would be were a court somewhere to rule that, because the President of the United States is African-American, it would be constitutional for a city to pass an ordinance requiring African-Americans to ride at the back of its municipal buses.
More than half a century after Rosa Parks changed history by insisting upon her right to ride at the front of the bus, such a ruling would strike us as inconceivable.
Nonetheless, that is essentially the argument lawyers for Republicans in the U.S. House of Representatives are making in defense of the so-called Defense of Marriage Act (DOMA). Essentially, the lawyers in question are claiming that LGBT people have so much political power that we don’t need the courts to protect our rights against anti-GLBT incursions.
The argument is specious on its face; if the queer nation were as powerful as the GOP and their lawyers make us out to be, the entire discussion about first-class citizenship for America’s queerfolk would simply not be happening; our equality as first-class members of the Commonwealth would be accepted as a matter of course, and gay-baiting would be considered as unacceptable as race-baiting.
For when race-baiting or gay-baiting become a tool of legislative policy --as gay-baiting has become part of the right-wing's legislative playbook-- it is emphatically one of the most crucial functions of the judiciary in a government composed of coordinate branches to step in and exercise checks and balances; in a system such as ours, the judiciary serves as a vital safeguard of minority rights against the “tyranny of the majority.”
The history of most American minorities --- to say nothing of the history of American women --- has been one of ongoing efforts to secure first-class citizenship in the Commonwealth. Obtaining first-class citizenship and obtaining political power have historically been closely intertwined in a self reinforcing feedback loop; the more a minority community can overcome structural discrimination against its own membership, the more members of that community can secure the political clout needed to ameliorate and ultimately eliminate the grosser forms of legally sanctioned discrimination.
Consider for example the parallel histories of the Irish- and African-American communities. The success of the Irish effort to integrate into American society, and the relative success of the African-American community to do so can be gauged by the extent to which members of each community have been able to seek political office, up to and including the presidency of the United States. John F. Kennedy established the principle that an Irish Catholic can make it to 1600 Pennsylvania Ave., and Barack Obama broke the color barrier that had kept a black man from being in charge at the White House.
One of the other reliable indicators of a community’s relative degree of political power is the extent to which it becomes progressively less admissible for mainstream politicians or political parties to advocate against that community’s equality --to engage in race-baiting or gay-baiting, for example. Thus, no sane American incumbent or seeker of political office would seriously argue in favor of restoring Jim Crow, or bundling the descendents of the millions of Irish and Italians who fled grinding poverty for a better life in a New World back to the old countries from which their ancestors came.
But if the measure of any American community’s respective or relative political power is that it is, or comes to be, regarded as inadmissible to target that community for specific and invidious discrimination, then GLBT Americans are far from having the kind of political power that the House Republicans’ lawyers claim we do.
If we had such power, then 31 states would not have written discrimination against our families into their constitutions.
If we had such power, it would be unlawful in every single state of the union to deny LGBT people jobs or access to housing on account of sexual orientation.
If we had such power, it would not have taken almost 20 years to lift the ban on open service in the Armed Forces by queer people.
In short, if we had such power, the GOP would presumably know better than to use us as targets whenever a Republican presidential hopeful wants to throw red meat to the extreme base.
Forasmuch as we might wish it, however, and as much as the trend of history is running in our favor, we still remain one of the few minority groups --- along with Latinos (who many on the right see as presumptively illegal aliens) and Muslims --- against whom many of our American neighbors feel it perfectly legitimate to discriminate with hateful legislation that denies us such basic rights as the freedom to marry and the liberty to be authentically ourselves as out people in the Commonwealth.
Many years ago, I observed that a government which can deny me the right to enter into a marriage -- by that name, and not some other -- with the man of my choice in some measure reduces me to the status of a slave. It is worth recalling that in the antebellum South, slave marriages had no legal validity; the master could break up that marriage at his convenience and sell one or both of the parties down the river.
Because the lack of liberty of marital contract is so very much a badge and incident of slavery, our liberty as queerfolk is necessarily impaired and incomplete; we are barely a single degree removed from the trammels of the Peculiar Institution.
It has been said that the true test of democracy is not how well it protects the majority, but how well it protects the dissenting, outspoken, or unpopular minority. As long as we are considered legitimate targets for exclusion from first-class citizenship in the Commonwealth, as long as a disturbingly large number of so-called socially conservative politicians and wannabes seek to compass our vanishing by any means necessary, and as long as our basic human rights are in danger of being stripped from us by the whim or caprice of a demagogued and inflamed electorate, we will still need the protection of the courts and of the Constitution.
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PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California. He litigated one of the first marriage equality cases in California, almost 20 years, ago, when it wasn’t fashionable or politic to do so. The views expressed herein are his own.
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